The opinion of the court was delivered by: Sweet, D.J.
On September 1, 2005, defendant Jose Rivera ("Rivera") pled guilty to one count of conspiring in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a) (1), and 841(b) (1)(C), a Class C felony. For the reasons set forth below, Rivera will be sentenced to a term of imprisonment of 60 months, to be followed by a three-year term of supervised release. Rivera will also be required to pay a mandatory special assessment of $100.
Rivera was arrested on August 12, 2004. An indictment was filed in the Southern District of New York on September 7, 2004, charging that on or about October 24, 2003: (1) Rivera, his co-defendant, and others conspired to distribute and possess with intent to distribute heroin; and (2) Rivera and his co-defendant distributed and possessed with intent to distribute four grams of heroin. Rivera has been detained without bail since his arrest.
On September 1, 2005, Rivera appeared before the Honorable Michael H. Dolinger of the Southern District of New York and pled guilty to the offense charged in the first count of the indictment. Rivera's guilty plea was accepted by this Court on September 29, 2005, and he is scheduled to be sentenced on November 30, 2006.
In accordance with the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines') established by the United States Sentencing Commission. Thus, he sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)the need for the sentence imposed -
(A) to reflect the seriousness of the offense, to promote respect for the law, an. to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for -
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...;
(5) any pertinent policy statement ... [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7)the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
The following description draws on the Pre-Sentence Investigation Report prepared by the Probation Office of the United States District Court for the Southern District of New York and dated May 17, 2006 ("the PSI"). Additional facts regarding Rivera's history and characteristics are adopted as set forth in that report.
Jose Luis Rivera was born in Fajaldo, Puerto Rico, in 1968. Rivera moved to the United States with is mother when he was approximately five years of age. He reportedly knows nothing about his father and has never had a surrogate father figure in his life.
Rivera has reportedly suffered several major injuries. At a very young age, he reportedly fell from a second floor terrace and injured his head, the treatment for which included the placement of a metal plate in his head. In addition, in 1993, Rivera was reportedly the victim of a drive-by shooting. ...